Opinion
No. CV06-5002050S
May 14, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE APPORTIONMENT COMPLAINT #111
On July 11, 2006, the plaintiffs, Reginald Jackson, Jr. and Esmeraldo Marcano, filed a complaint against the defendant, Gary Dennis alleging negligence, common-law recklessness and statutory recklessness resulting from a motor vehicle accident. The facts allege that the defendant entered into an intersection and collided with the vehicle operated by Jackson in which Marcano was a passenger.
On December 11, 2006, the defendant filed an apportionment complaint against Jackson alleging negligence and claiming an apportionment of liability among the parties pursuant to Connecticut General Statutes § 52-572h and 52-102b. The apportionment defendant moves to strike the apportionment complaint on the ground that the apportionment plaintiff improperly attempted to apportion liability to one who is already a party to the underlying action in violation of § 52-102b.
Discussion
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The court takes "the facts to be those alleged in the complaint . . . and [the court construes] the complaint in the manner most favorable to sustaining its legal sufficiency." Id.
The apportionment defendant argues that General Statutes § 52-102b limits the filing of an apportionment complaint against a person who is already a party to the action. He further asserts that creating a cause of action that did not exist at common law should be strictly construed and follow the plain meaning of the words of the statute.
The apportionment plaintiff argues that while both plaintiffs have claims against the defendant, the court should view the present case as two separate actions filed together for the sake of convenience. He further asserts that if the apportionment complaint is struck, a situation may arise which will inflict injustice upon him if the apportionment plaintiff later withdraws from the case. Such a scenario, he argues. would leave him no means to recover against the apportionment defendant who is potentially the primary tortfeasor.
General Statutes § 52-102b(a) provides in relevant part, "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which cause the demand for relief shall seek an apportionment of liability."
Currently, there is a split between the Superior Courts as to whether a defendant may file an apportionment complaint against a person or entity who is already a party to the lawsuit. "The majority of Superior Court decisions hold that § 52-102b precludes a cross claim for apportionment against someone who is already a party to the action." Rubbak v. Thompson, Superior Court, judicial district of Stamford, Docket No. CV 00 0180009 (April 6, 2001, Lewis, J.) (20 Conn. L. Rptr 316). "Generally the decisions of the [courts] that adopt the majority rule do so on the basis of the plain language and legislative history of § 52-102b as well as the fact that the apportionment is already available to the parties to negligence actions." Roklen v. Presnell, Superior Court, judicial district of New Haven, Docket No. CV 04 0287569 (March 15, 2006, Taylor, J.) (40 Conn. L. Rptr 883).
See also DiMaggio v. Tuck, Superior Court, judicial district of New Haven, Docket No. CV 03 0285298 (February 26, 2004, Wiese, J.) [ 36 Conn. L. Rptr. 579]; Evans v. Spinelli, Superior Court, judicial district of New Haven, Docket No. CV 02 0279651 (February 10, 2003, Wiese, J.) [ 34 Conn. L. Rptr. 52]; Pryce v. Keane Thummel Trucking, Superior Court, judicial district of Hartford, Docket No. CV 00 0800961 (July 20, 2001, Bergen, J.); Rubbak v. Thompson, Superior Court, judicial district of Stamford (April 6, 2001, Lewis, J.)
This court is not persuaded by the majority approach, but rather sides with the minority for the following reasons consistent with the other courts adopting the minority approach.
To begin, the meaning of a "party" within § 52-102b is ambiguous. Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. CV 429034 (March 27, 2001, Blue, J.) [ 29 Conn. L. Rptr. 311]. The question is whether [the plaintiff driver] is "`a party to the action' within the meaning of § 52-102b(a). The legislature has not defined the term `party.' The Supreme Court has cautioned that, [a]nalyzing the word `party' by its commonly approved usage is inappropriate. Ordinarily, the word `party' has a technical legal meaning, referring to those by or against whom a legal suit is brought." (Internal quotation marks omitted.) Id. The minority views these types of cases as essentially two cases: the plaintiff driver versus the defendant and the plaintiff passenger versus the defendant. Id. Although these cases may be tried together, the jury must consider the claims separately. Id. Based on this theory, the plaintiff driver is not a "party" to the plaintiff passenger's case against the defendant.
Furthermore, the legislative history is silent on this issue. See Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. CV 423742 (June 13, 2000, Levin, J.) [ 27 Conn. L. Rptr. 403]. "With respect to the circumstances surrounding the enactment of General Statutes § 52-102b, it is well-known that prior to the enactment of § 52-102b there was a split in authority among the superior courts as to the proper method to bring additional parties into the action for apportionment . . . Section 52-102b(f) declares that this question of method is legislatively settled. This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action . . . A statute, such as § 52-102b, that governs how a defendant may add a party and assert an apportionment claim against him does not govern how to do so with respect to existing parties." (Citations omitted; internal quotation marks omitted.) Id. "If the legislature had intended to preclude apportionment claims by defendants against existing parties, it could have done so and would have done so in clear language. It did not." Id.
Finally, as the minority has recognized, there are potential problems with the majority approach. Specifically, "there is nothing preventing a defendant who seeks apportionment from asserting grounds of negligence different [from] those asserted by the plaintiff. If an apportionment complaint is not permitted or required against a present party, that party may have no notice of the claim for apportionment let alone the specifications of negligence until the end of the presentation of evidence. Nor may that party have any pretrial notice, in the way of discovery, of the evidence . . . to be presented against him." Id.
Another possible issue presented by disallowing the apportionment complaint arises where the plaintiff driver settles with the defendant driver or withdraws from the case. Where there is no cross claim between the plaintiffs, as is the case here, the defendant is without means to apportion liability against the plaintiff driver who may be found to be the primary tortfeasor. The defendant is then left to bear all of the damages to the plaintiff passenger because the plaintiff driver is no longer a party to the action.
"[W]hen two constructions are possible, courts will adopt the one which makes the statute effective and workable, and not one which leads to difficult and possibly bizarre results . . . In construing a statute [governing recovery for negligence] common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." Id. Because adopting the majority approach would result in the difficult results explained above, this court is of the opinion that the statute should be read consistent with the minority view in order to achieve a rational result.
Conclusion
Based on the foregoing, and consistent with the minority approach, the motion to strike the apportionment complaint is denied.